First National Bank of Frederick v. McIlvaine

GATES, J. Action on two promissory notes. The first cause of action alleged the execution and delivery by defendant and three other persons of a promissory note for $1,000, a small in-dorsement thereon, the giving of a renewal note three months thereafter, the giving of a second renewal note three months after ■the first renewal, and nonpayment of any of said notes. The second cause of action was upon a note for $1,500, and contains similar allegations. The answer, except as it admitted the execution of the original notes and the corporate capacity of plaintiff, was a general denial. There was also, an affirmative defense, but the allegations thereof are not material to the questions raised by the appeal. The original notes were offered and received in evidence without objection. The plaintiff rested. Defendant moved for the direction of the verdict, giving reasons, which motion was denied. Thereupon defendant rested. Plaintiff then moved for the direction of the verdict, which was granted. From ■the judgment and order denying a new trial, defendant appeals. But two question are presented :by the appeal. [1] It is first urged that, as a condition precedent to plaintiff’s right to . recover on the original notes, the renewal notes should have been delivered up for cancellation. Under proper issues that question might have been one for our consideration. Under the pleadings and proof it is not. It will be noticed that' the execution of all renewal notes was denied. Plaintiff in its proof simply offered-the original notes and ignored the renewal notes. The defendant offered no evidence. Under the issues presented by the pleadings and proofs there were no renewal notes. The question as to the effect of the renewal notes upon the transaction was therefore not raised in the trial court, and is not now before us. [2] The second contention is that plaintiff’s motion for a directed verdict should have been denied, for the reason that the [224] grounds thereof were not stated. In support thereof counsel cite Tanderup v. Hanson, 8 S. D. 375, 66 N. W. 1073, and Howie v. Bratrud, 14 S. D. 648, 86 N. W. 747. The same point was passed upon in Nichols & Shepard Co. v. Marshall, 28 S. D. 182, 132 N. W. 791;. Yeager v. S. D. Central Ry. Co., 140 N. W. 690, and Davis v. C. & J. Michel Brewing Co., 140 N. W. 694. These cases are not applicable to the present question. In each of those cases the motion for a directed verdict was made by defendant on account of a supposed defect in plaintiff's proof. There is a valid reason why a defendant, who conceives -that the plaintiff has failed in his proof, should specify in his motion for the direction of the verdict the particulars wherein the proof is deficient. Such a case is vastly different from the present one. Here the plaintiff had made his proof. The defendant had moved for a direction of the verdict for reasons specified. When such motion was denied he rested, without introducing any evidence. The plaintiff moved for a directed verdict. The ground for such motion, although not specified, was of course that plaintiff had proven his case. It would be futile to require plaintiff on such motion, in the absence of evidence on behalf of defendant, to call the court’s attention to each step in the proof. The defendant had already urged all of the grounds which his learned counsel could discover why the defendant’s motion should be granted, and it had been denied. The motion for a directed verdict on plaintiff’s part was not necessary. There was nothing else for the court to do but that. The -court would have directed the verdict even without plaintiff’s motion. Upon the argument our attention was called to the late case of Minder & Jorgenson Land Co. v. Brustuen, 140 N. W. 251. There the defendant offered evidence in support of his defense. At the conclusion thereof plaintiff moved for a directed verdict upon the ground that no defense had been established. If was held that such motion was too indefinite. In attacking the defense the plaintiff was in precisely the same position in which the defendants were in the cases above cited. It was necessary for the defendant in each of those cases to specify the reasons plaintiff had failed in his proof. It was necessary in the Minder & Jorgenson case for plaintiff to specify wherein defendant failed in his proof. In so doing it was necessary for the plaintiff, in order to make the issues clear, to show [225] what he himself had proven. The distinction between that case and this is clear and unmistakable. • The judgment and order appealed from are affirmed.